Articles Posted in Experts

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The U.S. Court of Appeals, Seventh Circuit, affirmed the trial court’s decision that granted the defendant manufacturer’s (Clark Equipment Co.) motion to exclude the plaintiff’s expert witness and for summary judgment in the plaintiff’s strict product liability lawsuit. In this case, it was alleged that the plaintiff was injured because of the design defect in the Clark Equipment’s skid-steer loader when the loader tipped over on the plaintiff and severely damaged his leg, foot and ankle.

The plaintiff’s-controlled experts stated that the design of the loader, which provided for a 62-inch low-profile bucket, made it highly likely that the loader would tip over on plaintiff when the bucket would have been loaded in excess of 1,300-1,400 lb. capacity. The appeals court also ruled that the district court could properly find that the expert’s opinion did not meet the standard set forth in Federal Rules of Evidence 702 and Daubert, since:

(1) the expert had never used the skid-steer loader to pick up or move material and had not tested this design theory on neither the instant loader or similar loaders of equipment; (2) the evidence from others regarding operation of the loader did not support the expert’s opinion, where the individuals disclaim any personal knowledge or experience with other tipping or bouncing incidents; (3) the expert did not know the weight of the load that plaintiff was lifting at the time of the incident and thus this expert could only speculate that the size of the bucket was cause of the injuries to plaintiff; and (4) the expert chose not to account for and investigate potential alternative causes of this incident.

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During discovery in a negligence case, State Farm Insurance Co. retained outside counsel to defend Allison Rancour. In this Kane County case, the attorneys named Drs. Benjamin Goldberg and Michael Musacchio as controlled experts. The plaintiff requested a list of the amounts paid to each of the doctors in every case where they were hired by State Farm and the group of State Farm employees that practiced law in Chicago known as Bruce Farrel Dorn & Associates.

The defendant refused to comply and the court sanctioned the defendant and attorneys $25 a day for failing to comply. The attorney for the defendant and State Farm argued that the judge erred in commanding discovery from non-parties that had not been subpoenaed. And because neither the attorneys nor outside counsel hired by State Farm nor its client were employees of State Farm, the law firm claimed they could not be compelled to provide information possessed by State Farm.

The appellate court affirmed the discovery order but reversed the sanction because the outside firm used a “friendly contempt” for immediate review, thus the appellate court explained that there was no need to subpoena State Farm or the Bruce Farrel Dorn & Associates law firm because the discovery order was aimed at Rancour and the outside law firm. The decision of the appellate court was based on Szczeblewski v. Gossett, 342 Ill. App. 3d 344 (2003), and Oelze v. Score Sports Venture, 401 Ill. App. 3d 110 (2010) for the Second District. The court concluded that “the court correctly applied existing case law, which holds that a party has reasonable control over the documents possessed by her insurer.”

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On Oct. 10, 2013, Scott Gilman’s car ran over the left foot of Sweta Karn while the car was making a left turn on a street. Karn was a pedestrian at the time; she suffered severe and permanent injury to her foot. She filed a lawsuit against Gilman and his employer, Aspen Commercial Painting Inc.

Aspen and Gilman filed affirmative defenses sounding in contributory negligence and Karn’s failure to mitigate her damages.

At the jury trial, Aspen focused on a video that was taken that purported to show Karn walking, post incident, without a limp or any sign of her alleged permanent injuries. Karn, on seeing the video, denied that she was depicted in the video.

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The 7th Circuit United States Court of Appeals in Chicago affirmed a verdict by the U.S. District Court as to the injuries suffered by Donald and Mary Timm in July 2013.  During that time period, the Timms set off on a cross-country motorcycle trip on their Harley-Davidson motorcycle. The Timms’ route began at their home in Dyer, Ind., with a final destination at Salt Lake City, Utah.

While crossing through the state of Nebraska, the Timms suffered a catastrophic accident when their motorcycle’s rear tire sustained a puncture and rapidly deflated causing Donald Timm to lose control of the motorcycle and crash into a concrete median barrier.

Mary Timm flew off the motorcycle while Donald remained attached to the bike as it slid across the highway. Although both riders were wearing helmets, each sustained serious head injuries.  Donald sustained a traumatic brain injury as well as facial fractures and a cervical spine injury.

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An Illinois Appellate Court for the First District reversed and remanded a decision from a Cook County trial judge after it entered a judgment order following a jury verdict. Scott Gilman drove over one of Sweta Karn’s feet as he was making a left turn at a Chicago intersection on Oct. 10, 2013. She filed a lawsuit a month later against him and his employer, Aspen Painting Inc. ,for negligence. At the jury trial, the defendants raised the defenses of contributory negligence and failure to mitigate damages.

Multiple expert witnesses testified that Karn suffered “severe and permanent” nerve injury to her left foot. One of the experts, Dr. Oleg Petrov, a witness for the defendants, was questioned about a surveillance video submitted by the defendants that “allegedly showed plaintiff, after the date of the injury, walking and standing for long periods of time without any signs of discomfort or pain.”

Although the person walking in the video was never identified, Dr. Petrov used the video as the basis for his opinion that Karn’s injuries were not severe or permanent. Dr. Dean Stern, who was Karn’s podiatrist and surgeon, testified at the trial that she was not the person in the surveillance video that Dr. Petrov used.

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Plaintiff Frank Russo filed a lawsuit against the defendant, Corey Steel Co., to recover damages for injuries he suffered when a crane struck a lift in which Russo was working at the defendant’s plant. Corey Steel admitted liability, and the matter proceeded to a trial before a jury to deliberate solely on the issue of damages.

Following the trial, the jury signed a verdict in favor of Russo for a total amount of $9.9 million in damages. Corey Steel retained additional counsel, and as a result, the trial judge who presided over the trial recused himself of the post-trial proceedings.

Corey Steel filed a post-trial motion for a new trial on several grounds. The post-trial judge granted defendant’s motion for a new trial based solely on defendant’s argument that the trial judge erroneously allowed one of plaintiff’s experts to offer an opinion on plaintiff’s need for one future surgery. The trial judge had allowed the plaintiff’s expert’s testimony to stand. The post-trial judge denied defendant’s post-trial motion on the other grounds raised in the motion.

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Jeffrey Kopplin worked for Wisconsin Central Railroad. In January 2014, he was operating a train at the rail yard in Fond du Lac, Wis. In order to bring the train onto the right track, Kopplin had to get out of the train and “throw” a switch.

The weather that morning was severe, with below-freezing temperatures and high winds. Due to the weather, ice and snow had built up inside of the switch. Kopplin attempted to remove the buildup with a broom provided by the railroad, but he was unsuccessful. In attempting to remove the buildup of ice and snow, Kopplin injured his elbow.

A doctor diagnosed his injury with a medial and lateral epicondylitis. Kopplin took time off from work to receive treatment, including a pain-relief injection.

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This was a case of a rear-end car crash in which the plaintiff, William Kevin Peach, brought a lawsuit against Lyndsey E. McGovern  stemming  from personal injuries he sustained in an automobile incident. The jury returned a verdict in favor of defendant, and the judgment on the verdict was entered.

The plaintiff appealed, contending that the jury verdict was against the manifest weight of the evidence, especially when the defendant was adjudged negligent as a matter of law. The plaintiff further asserted that the trial court erred in allowing the defense counsel, over objection, to present evidence pertaining to the relative amount of damage sustained by the vehicles. The plaintiff also argued that there was a direct correlation between the amount of damage to the vehicles, as depicted in photographs and plaintiff’s injuries.

In this case, the plaintiff was on his way home around 10 p.m. after visiting his girlfriend on the evening of July 17, 2010. As he was driving home, he had to stop at an intersection to allow traffic to clear. While waiting at the stop sign, the rear of plaintiff’s pickup truck was hit by another vehicle driven by the defendant who was also on her way home. The defendant claims she was fully stopped behind plaintiff, when her foot slipped off the brake. She further testified that the vehicle simply rolled into the rear of the plaintiff’s truck. The plaintiff, on the other hand, estimated the defendant’s speed to have been 20-25 mph at the time of impact.  He also noticed that the defendant was on her cell phone.

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Steven Campbell testified at trial that in early July 2012 he was working for UPS when the defendant’s dog lunged at him and pushed him backward. As a result, Campbell injured his back and was not able to continue to work that day. He sought medical treatment and took some time off from work to recover.

He returned to work the next month. However, when he did return to UPS, he was unable to complete all of his normal employment responsibilities.

Just two months after Campbell’s July 2012 injury, he returned to the clinic where he had previously been treated. In November of that year, he consulted with a board-certified neurosurgeon regarding his ongoing back pain. This doctor, Dr. Kennedy, prescribed physical therapy and epidural injections. Campbell told the jury that he followed Dr. Kennedy’s advice.

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The United States Court of Appeals for the Seventh Circuit in Chicago has affirmed the grant of defendant’s motion for summary judgment in the plaintiff’s lawsuit that alleged that the product Testim, which was manufactured by Auxilium Pharmaceuticals as a topical gel containing testosterone, caused the plaintiff, Isaac Owens, to develop deep vein thrombosis (DVT).

The federal district court in Chicago granted Auxilium’s motion to exclude Owens’ sole expert witness on the issue of causation linking Testim to his medical condition.

The appeals panel stated that the district court could properly exclude causation testimony from the Owens’ expert, when: (1) although the expert opined that Testim had caused plaintiff’s DVT, he did so under the assumption that Owens was applying the prescribed dose of the gel in the proper manner; (2) Owens conceded that he had used only half of the prescribed dosage and applied the gel in the wrong parts of his body; and (3) Owens’ expert could not express an opinion regarding causation under circumstances that more accurately described Owens’ use and application of Testim.

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